SQKB and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 82

SQKB and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 82 (4 February 2025)

Applicant/s:  SQKB

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/9681

Tribunal:Senior Member Lyford

Place:Perth

Date:4 February 2025

Decision:The Tribunal affirms the decision under review.

...................[SGD]............

Senior Member Lyford

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 35 year old citizen of Afghanistan – extent of impediments if returned to Afghanistan – Non-Revocation Decision is affirmed

LEGISLATION

Children and Community Services Act 2004 (WA) - s 37

Migration Act 1958 (Cth) ss 15, 189, 197C(1), 197C(3), 198, 499, 499(1), 499(2A), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)

Criminal Code Compilation Act (WA) ss 220, 392(d), 392(2)

CASES

Djalic v Minister for Immigration (2004) 139 FCR 292

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1

Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561

QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1

PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17

SECONDARY MATERIALS

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 4(1), 5.1, 5.1(3), 5.2, 5.1(3), 5.2(4), 7, 7(2), 8, 8.1(1), 8.1(2), 8.1.1, 8.1.1(e), 8.1.1(1), 8.1.1(1)(c), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.3, 8.4, 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9.1(1), 9.1.2, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.3(1)

Australian Institute of Health and Welfare, Illicit drug use, AIHW, Australian Government, accessed 3 February 2025

Australian Federal Police, Drug crime, AFP, accessed 3 February 2025

Betterhealth Victoria, How drugs affect your body, Victorian Government, accessed 3 February 2025.

Department of Health and Aged Care, What are the effects of taking drugs?, Australian Government, accessed 3 February 2025

Australian Parliament House, Social and personal impact on families of illicit drug use, Australian Government, accessed 3 February 2025

Statement of Reasons

INTRODUCTION

  1. The Applicant has sought review of a decision of a delegate of the Respondent, dated 8 November 2024, not to revoke the cancellation of his Refugee (Class XB) (subclass 200) visa under s 501CA(4) of the Migration Act

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AGLC
SQKB and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 82
Case
[2025] ARTA 82
Decision Date

CaseChat Overview and Summary

The Applicant, a 35-year-old Afghan citizen, challenges a decision by a delegate of the Minister for Immigration and Multicultural Affairs to not revoke the cancellation of his Refugee (Class XB) (subclass 200) visa. The Tribunal was required to decide if the Applicant meets the "character test" under s 501(6) of the Migration Act 1958 and, if not, whether there is another reason to revoke the visa cancellation decision under s 501CA(4) of the Act.

The Applicant's visa was first cancelled in 2019 due to a conviction for Aggravated Robbery, which was later revoked. The Applicant's visa was cancelled again in 2024 due to drug-related convictions, which led to the current appeal. The Tribunal noted the Applicant's significant criminal history, including multiple convictions involving serious offences, and assessed whether these factors justified the visa cancellation. Under s 501CA of the Migration Act, the Tribunal must first determine if the Applicant meets the character test, and if not, consider whether there is another reason to revoke the cancellation.

In its decision, the Tribunal concluded that the Applicant does not meet the character test, as he has a substantial criminal record. The Tribunal considered the nature and recency of the Applicant's offences, his age at the time of the convictions, and his lack of remorse or rehabilitation efforts. The Tribunal found that the Applicant's criminal history, coupled with his failure to respond to an invitation to comment on additional information, did not present a compelling case for revoking the visa cancellation. The Tribunal upheld the decision not to revoke the visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal affirms the decision under review.BACKGROUND [1] Exhibit 2, G4, pages 28 – 42. The Applicant is a 35 year old citizen of Afghanistan[2] who was born in Iran as an Afghani refugee.[3][2] Exhibit 2, G11, page 69.[3] Exhibit 1. The Applicant first arrived in Australia on 11 September 2009, aged 19, as the holder of a Class XB Subclass 200 Refugee visa (visa).[4] The Applicant came to Australia from Iran with his parents, three younger sisters and one younger brother. [4] Exhibit 2, G15, page 103.First visa cancellation – 2019 On 15 August 2019, the Applicant (then aged 29) was convicted of Aggravated Robbery under s 392(d) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) and sentenced to 16 months imprisonment.[5][5] Exhibit 2, G6, page 44; G8, page 62. On 1 November 2019, the Department of Home Affairs (Department) notified the Applicant that his visa was cancelled under s 501(3A) of the Migration Act on character grounds due to his conviction and sentence for Aggravated Robbery on 15 August 2019.[6] [6] Exhibit 2, G12, page 84. Following the Applicant's request for revocation, on 29 May 2020, the Department notified the Applicant of its decision to revoke the cancellation of his visa and provided him with a formal “warning” that any future offending may result in his visa being cancelled on character grounds.[7] The details of the Aggravated Robbery are set out below under the heading “Applicant’s Conduct and Offending”.[7] Exhibit 2, G13, pages 92 - 93.Second visa cancellation - 2024 On 23 January 2024, the Applicant (then aged 34) was convicted in the Perth District Court of Western Australia of Possess Methylamphetamine With Intent to Sell/Supply, under the Criminal Code, and sentenced to two years imprisonment.[8] On the same date, the Applicant was also convicted of Possession of Prohibited Drugs with Intent to Sell or Supply, under the Criminal Code, and sentenced to six months imprisonment.[9][8] Exhibit 2, G6, page 44; G7 page 54.[9] Exhibit 2, G6, page 44. On 19 April 2024, the Department mandatorily cancelled the Applicant's visa, for a second time, under s 501(3A) of the Act due to his drug convictions on 23 January 2024. This was because the Applicant had a “substantial criminal record” because he was sentenced to a term of imprisonment of 12 months or more.[10] The Department notified the Applicant of the decision on the same date.[11][10] Exhibit 2, G16, pages 104 – 111.[11] Exhibit 2, G16, page 104. On 24 May 2024, the Applicant made representations, within the prescribed timeframe, to have the cancellation revoked under s 501CA of the Migration Act.[12][12] Exhibit 2, G10 – G11, pages 65 – 83. On 16 August 2024, the Department invited the Applicant to comment on further information which may be considered when making the decision whether to revoke the decision to cancel the Applicant's visa.[13] The Applicant did not respond.[13] Exhibit 2, G14. On 8 November 2024, a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s visa.[14] The Applicant was notified of the Respondent’s decision on 12 November 2024.[15][14] Exhibit 2, G4, pages 28 – 42.[15] Exhibit 2, G3, page 19.

Evidence

Evidence Before The Court

The issues to be decided by the Tribunal are whether:(a)the Applicant passes the “character test” in s 501(6) of the Migration Act; and, if not,(b)the Tribunal is satisfied that there is “another reason” why the visa cancellation decision should be revoked under s 501CA(4) of the Migration Act.[17][17] See s 501CA (4) of the Migration Act 1958 (Cth).HEARING AND EVIDENCE The Applicant attended the hearing by MS Teams, on 20 January 2025, and gave evidence in English. A Farsi interpreter was provided, at the Applicant’s request, but his services were ultimately not needed or used. At the hearing, the following documents were marked as exhibits:(a)Applicant’s Bundle of Documents, lodged by the Applicant on 14 January 2025 (Exhibit 1);(b)Hearing Book, comprised of HB1 – HB543, lodged by the Respondent on 9 and 15 January 2025 (Exhibit 2). Where relevant, the above evidence is referred to in the Tribunal’s reasons below.LEGISLATIVE FRAMEWORKMigration ActMandatory visa cancellation – character test Under s 501(3A) of the Migration Act, the Minister must cancel the visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b), or (c); or(ii) ….; and(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory. The “character test” is set out in s 501(6) of the Migration Act and provides: (6)For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)); (emphasis added) Section 501(7)(c) of the Migration Act provides that for the purpose of the character test, a person has a “substantial criminal record” if “the person has been sentenced to a term of imprisonment of 12 months or more”. Power to revoke visa cancellation decision If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice of the decision setting out the original decision,[18] particulars of the relevant information[19] and invite the person to make representations to the Minister about revocation of the original decision.[20] [18] Migration Act 1958 s 501CA(3)(a)(i).[19] Migration Act 1958 s 501CA(3)(a)(ii).[20] Migration Act 1958 s 501CA (3)(b). Section 501CA(4) of the Migration Act provides that, the Minister may revoke the original decision if:(a)representations have been made by the applicant for review in accordance with an invitation to the applicant to make such representations about revocation of the cancellation;[21] and(b)the Minister is satisfied that:(i) the person passes the “character test”;[22] or(ii)there is “another reason” why the original decision should be revoked.[23] [21] Migration Act 1958 s 501CA(4)(a).[22] Migration Act 1958 s 501CA(3)(b)(i).[23] Migration Act 1958 s 501CA(3)(b)(ii).

Decision

Reasons for decision

Section 501(7)(c) of the Migration Act provides that for the purpose of the character test, a person has a “substantial criminal record” if “the person has been sentenced to a term of imprisonment of 12 months or more”. Power to revoke visa cancellation decision If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice of the decision setting out the original decision,[18] particulars of the relevant information[19] and invite the person to make representations to the Minister about revocation of the original decision.[20] [18] Migration Act 1958 s 501CA(3)(a)(i).[19] Migration Act 1958 s 501CA(3)(a)(ii).[20] Migration Act 1958 s 501CA (3)(b). Section 501CA(4) of the Migration Act provides that, the Minister may revoke the original decision if:(a)representations have been made by the applicant for review in accordance with an invitation to the applicant to make such representations about revocation of the cancellation;[21] and(b)the Minister is satisfied that:(i) the person passes the “character test”;[22] or(ii)there is “another reason” why the original decision should be revoked.[23] [21] Migration Act 1958 s 501CA(4)(a).[22] Migration Act 1958 s 501CA(3)(b)(i).[23] Migration Act 1958 s 501CA(3)(b)(ii). Making a revocation decision under s 501CA of the Migration Act requires the decision-maker to first decide whether the person passes the “character test” under s 501CA(4)(b)(i) of the Migration Act and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) of the Migration Act if there is “another reason” why the original decision should be revoked.[24] [24] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66]. A decision under s 501CA(4) of the Migration Act involves an assessment an evaluation of the factors for and against revoking the cancellation.[25][25] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338.Direction No. 110 As stated above, the Tribunal (standing in the shoes of the Respondent) is required to form a state of satisfaction as to whether there is “another reason” why the original decision should be revoked, reasonably and on a correct understanding of the law.[26] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act. [26] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119]. On 7 June 2024, the Minister made Direction No. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024 (Direction No. 110). Direction No. 110 replaced the previous Direction No. 99.[27][27] Direction No. 110 paras. 2-3. The purpose of Direction No. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[28] [28] Direction No. 110 para. 5.1(4). Objectives

Ratio Decidendi

Legal Principle Established

The Applicant has sought review of a decision of a delegate of the Respondent, dated 8 November 2024, not to revoke the cancellation of his Refugee (Class XB) (subclass 200) visa under s 501CA(4) of the Migration Act 1958 (Migration Act).[1] For the following reasons, the Tribunal affirms the decision under review.BACKGROUND [1] Exhibit 2, G4, pages 28 – 42. The Applicant is a 35 year old citizen of Afghanistan[2] who was born in Iran as an Afghani refugee.[3][2] Exhibit 2, G11, page 69.[3] Exhibit 1. The Applicant first arrived in Australia on 11 September 2009, aged 19, as the holder of a Class XB Subclass 200 Refugee visa (visa).[4] The Applicant came to Australia from Iran with his parents, three younger sisters and one younger brother. [4] Exhibit 2, G15, page 103.First visa cancellation – 2019 On 15 August 2019, the Applicant (then aged 29) was convicted of Aggravated Robbery under s 392(d) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) and sentenced to 16 months imprisonment.[5][5] Exhibit 2, G6, page 44; G8, page 62. On 1 November 2019, the Department of Home Affairs (Department) notified the Applicant that his visa was cancelled under s 501(3A) of the Migration Act on character grounds due to his conviction and sentence for Aggravated Robbery on 15 August 2019.[6] [6] Exhibit 2, G12, page 84. Following the Applicant's request for revocation, on 29 May 2020, the Department notified the Applicant of its decision to revoke the cancellation of his visa and provided him with a formal “warning” that any future offending may result in his visa being cancelled on character grounds.[7] The details of the Aggravated Robbery are set out below under the heading “Applicant’s Conduct and Offending”.[7] Exhibit 2, G13, pages 92 - 93.Second visa cancellation - 2024 On 23 January 2024, the Applicant (then aged 34) was convicted in the Perth District Court of Western Australia of Possess Methylamphetamine With Intent to Sell/Supply, under the Criminal Code, and sentenced to two years imprisonment.[8] On the same date, the Applicant was also convicted of Possession of Prohibited Drugs with Intent to Sell or Supply, under the Criminal Code, and sentenced to six months imprisonment.[9][8] Exhibit 2, G6, page 44; G7 page 54.[9] Exhibit 2, G6, page 44. On 19 April 2024, the Department mandatorily cancelled the Applicant's visa, for a second time, under s 501(3A) of the Act due to his drug convictions on 23 January 2024. This was because the Applicant had a “substantial criminal record” because he was sentenced to a term of imprisonment of 12 months or more.[10] The Department notified the Applicant of the decision on the same date.[11][10] Exhibit 2, G16, pages 104 – 111.[11] Exhibit 2, G16, page 104. On 24 May 2024, the Applicant made representations, within the prescribed timeframe, to have the cancellation revoked under s 501CA of the Migration Act.[12][12] Exhibit 2, G10 – G11, pages 65 – 83. On 16 August 2024, the Department invited the Applicant to comment on further information which may be considered when making the decision whether to revoke the decision to cancel the Applicant's visa.[13] The Applicant did not respond.[13] Exhibit 2, G14.